State of California v. Rob Taylor

FAIRFIELD, CA – Medical marijuana patient Robert Ellis Taylor has been arraigned in Solano County Superior Court, charged with criminal counts related to an eighty-plant grow officers discovered in his home in October 2005. But due to challenges presented by defense attorney Sara Zalkin, Taylor will be fighting one fewer charge than expected.

In addition to a cultivation count and a count of possession with the intent to distribute, Taylor was initially facing a charge of maintaining a place for the manufacture or distribution of a controlled substance. The charge, more popularly known for its use in the prosecution of crackhouses, has recently been on the increase in cases against residential marijuana growers. This increase comes amid a media frenzy about suburban homes being gutted and every square inch being used for indoor marijuana cultivation. To prove their case, the prosecution vigorously attempted to show that Taylor did not live in his 3-bedroom home, but used it solely for the purpose of growing marijuana. During a hearing on March 27th, 2007, Fairfield police officer Jausiah Jacobsen took the stand to testify for the prosecution about this allegation. Jacobsen, who flashes a ready smile and bears no small resemblance to film star Sean Penn, is more widely known for a highly controversial police brutality case. The detective earned public condemnation for a February 2004 incident in which he viciously beat an African American man with a metal baton for his refusal to lay down in the muddy street while Jacobsen assessed a parking violation.

The incident culminated in a $100,000 settlement from the Fairfield Police Department to the victimized man, who had been beaten so severely that he had to be taken to the hospital for his injuries. Since then, Jacobsen was promoted to investigatory work and was also assigned to various undercover operations.

It was in this capacity that Taylor first encountered Jacobsen, who led a team of narcotics officers through a search of the defendant’s house on October 6th, 2005. “They came in with a search warrant in one hand and a 9mm in the other,” Taylor said while describing the raid of his home, which he believes to be the result of a tip from a neighbor. But, according to Taylor, Jacobsen wore a face-mask during the entire operation. In fact, Taylor never saw the officer’s grinning face in full until Jacobsen was on the witness stand for the preliminary hearing in the case, initially testifying that there were no articles in the house that indicated it was a residence.

Jacobsen confidently testified that he could not recall clothes in any of the closets in Taylor’s house. He also did not recall seeing a television set, a bed, nightstands, or a chest of drawers. According to the detective, the bathroom was entirely bare of linens and toiletries. The absence of these items was the foundation of the District Attorney’s allegation that the house was maintained solely for purpose of marijuana cultivation.

But that foundation cracked irreparably during Zalkin’s cross-examination.

The defense attorney immediately entered into evidence a series of photographs taken by the detective himself on the day of the bust and kept in police record thereafter. One by one, an exuberant Zalkin questioned Jacobsen about his testimony on each of the household items he had previously declared to be missing.

“You testified there were no clothes in the closets?” the defense attorney continued her questioning.

“There were no clothes hanging in the closets, as I recall,” the detective responded.

“Do these appear to be the items of clothing?” Zalkin pointed to a picture showing a closet in the Taylor residence, presenting it to the witness eagerly.

“Yes,” Jacobsen conceded.

By the time she had finished her cross-examination, Zalkin had changed the officer’s mind on the presence of clothing, a television set and a futon. With the addition of evidence of two puppies in Taylor’s yard, Zalkin had successfully transformed the image of the house from a stark marijuana lab into a setting of idyllic domestic bliss.

In the face of this metamorphosis, Deputy District Attorney Courtney Anderson was quick to drop the charges of maintaining a place for the manufacture of a controlled substance.

Remaining, however, are the charges for cultivation and possession with the intent to sell. After a preliminary hearing that spanned over two months, Judge Wendy Getty found that there was probable cause to believe these violations had occurred.

The defense had hoped to get these charges thrown out based on Taylor’s status as a legitimate medical marijuana patient in conformity with California’s Compassionate Use Act. To do so, the defense would have to demonstrate that Taylor possessed an amount of marijuana consistent with his personal medical use. It was not a easy task, and Zalkin met with a fresh challenge at every turn.

One of these challenges was in the form of the prosecutor herself, who did her best to downplay the legitimacy of medical marijuana. “It’s quite easy to get ahold of these cards,” Anderson said flippantly. “There’s not a high thresh-hold, really. I could just walk into a doctor’s office and say I have back problems and I would get a card.”

Her examination of officer Jacobsen elicited further statements accusing Taylor of intending to distribute. “I believe it was being cultivated for later sales,” Jacobsen said of the grow operation, supporting his claim by alleging that Taylor had no verifiable income and that the harvested crop would have a street value exceeding $100,000.

Jacobsen furthered his claim by testifying that the search of the residence did not turn up any dried marijuana or any delivery devices, such as pipes are bongs. “I thought I would have found paraphernalia and usable marijuana if Mr. Taylor was a verified patient, and I did not,” the detective concluded.

But when Zalkin presented a crime scene photo that depicted a marijuana pipe lying atop Taylor’s microwave, the defendant’s prospects began to look sunny again. With a mood of optimism, the defense called expert witness Chris Conrad to the stand to give testimony on marijuana dosages and plant yields.

On the stand, Conrad stated unequivocally that the amount of marijuana Taylor possessed was consistent with personal medical use for a “chronic, everyday user.” In fact, Conrad explained, the defendant’s quantity was on par with the amount of marijuana the federal government sends to the patients in its own Investigational New Drug Program. “If you annualize it,” Conrad said regarding the quantity of marijuana at Taylor’s house, “this puts you in the range of what the federal government gives to its patients.”

Through examination by the defense, Conrad went on to detail the differences between Taylor’s case and other cases in which marijuana was being sold. According to Conrad, sales cases are distinguished by evidence like pay sheets, marijuana in pre-measured amounts, very high plant counts, and also by people coming over during the bust to try to buy marijuana. The case against Taylor, by contrast, involves none of these indicators.

But if Conrad’s testimony lit a glimmer of hope for the defense, it was quickly extinguished once Taylor’s doctor took the stand. No stranger to a courtroom, Dr. Hany Assad is well known as a physician who issues medical marijuana recommendations, but also as a doctor who is forbidden to treat female patients due to allegations of sexual misconduct. Though the charges against him have been the buzz of the medical marijuana community lately, the controversy did not follow him to the witness stand for this case. Both the prosecutor and the defense counsel were mum on the sexual misconduct claims.

There was Taylor’s recommendation to verify, and more to the point -- the issue of whether or not Dr. Assad had advised the defendant to use an amount of marijuana greater than specified by his county’s guidelines. Some compassionate doctors follow the practice of occasionally approving amounts exceeding those set forth in Senate Bill 420, but it soon became clear that Dr. Assad isn’t one of them.

After a detailed chronology of his medical experience from Egypt to the United States, Dr. Assad began answering questions about the standards he uses in his current practice. Although Anderson employed several lines of questioning attacking the credibility of the doctor’s recommendations, the judge kept the testimony focused. “Medical marijuana is lawful with a prescription from a doctor,” Judge Getty reminded the prosecutor. “What the issue is now is the amount.”

With this in mind, the defense then attempted to get the doctor to name a specific amount of marijuana tied to the defendant’s use…but Zalkin came up empty-handed every time. Dr. Assad was staunchly resistant.

When the defense attorney questioned him about upper limits, Dr. Assad simply stated that he gave this discretion to the police. “We leave this up to the local authorities,” the doctor said regarding determinations of what amounts constitute personal use.

Zalkin then asked for an amount the doctor would recommend for the defendant’s condition, which includes chronic back pain resulting from a stabbing. Dr. Assad, in his established pattern, refused to provide an answer. “I can’t do that under federal guidelines,” he said dryly.

It was the death-nail in the defense’s hope for a dismissal on the sales charges, at least in the eyes of the judge. “If the doctor said he prescribed a specific amount, that’s the only way you could get over the thresh-hold established by local law,” Judge Getty explained before denying Zalkin’s request to discharge the case.

As if in consolation, however, the judge said confessionally that this was one of the most interesting preliminary hearings she’s ever had. It was a statement made all the less impactful by the fact that Judge Getty has been on the bench for well under a year.

Well aware of her inexperience, the judge concluded the hearing with a bit of foreshadowing. “I’m sure there will be someone with greater amounts of intelligence reviewing this case,” Judge Getty predicted directly before adjourning.

And it may well be. In the meantime, however, Taylor will head towards trial with one less charge hanging over his head. It’s a small victory, admittedly, but a victory nonetheless.

Originally published June 8, 2007 by Vanessa Nelson at www.medicalmarijuanaofamerica.com (now defunct).

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